JUDGMENT OF THE CIVIL SERVICE TRIBUNAL
(Third Chamber)

13 April 2011

Case F‑105/09

Séverine Scheefer

v

European Parliament

(Civil service — Temporary staff — Renewal of a contact of fixed duration — Reclassification of the contract of fixed duration as a contract of indefinite duration — Article 8, first paragraph, of the Conditions of employment)

Application: brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, whereby Ms Scheefer seeks, in substance, annulment of the Parliament’s decision of 12 February 2009 confirming that her contract as a member of the temporary staff would end on 31 March 2009 and annulment of the decision of 12 October 2009 rejecting her complaint, and also compensation for the harm which she claims to have sustained owing to the Parliament’s conduct.

Held: The decision contained in the letter of 12 February 2009 whereby the Secretary General of the Parliament informed the applicant, first, that no legally acceptable solution allowing her to continue her activity in the medical office in Luxembourg (Luxembourg) had been found and, second, that her contract as a member of the temporary staff would come to an end on 31 March 2009 is annulled. The Parliament is ordered to pay the applicant the difference between the amount of the remuneration to which she would have been entitled had she remained in her post within the Parliament and the amount of the remuneration, fees, unemployment benefit or any compensation in place thereof which she has actually received since 1 April 2009, in place of the remuneration which she received as a member of the temporary staff. The remainder of the action is dismissed. The Parliament is ordered, in addition to bearing its own costs, to pay the costs incurred by the applicant.

Summary

1.      Officials — Actions — Subject-matter — Reclassification of a temporary staff contract — Inadmissibility

(Staff Regulations, Art. 91)

2.      Officials — Actions — Prior administrative complaint — Time-limits — Point from which time starts to run — Date of signature of the temporary staff contract

(Staff Regulations, Art. 90(2))

3.      Social policy — Framework agreement on fixed-term work concluded by ETUC, UICE and CEEP — Directive 1999/70

(Conditions of employment of other servants; Council Directive 1999/70)

4.      Officials — Members of the temporary staff — Members of the temporary staff coming under Article 2(a) of the Conditions of employment of other servants — Renewal after the first extension of the contract for a fixed duration — Reclassification of the contract of fixed duration as a contract of indefinite duration

(Conditions of employment of other servants, Arts 2(a) and 8, paragraph 1; Council Directive 1999/70, annex, clause 5(1)(c) and (2)(b))

5.      Officials — Actions — Unlimited jurisdiction — Disputes of a financial character within the meaning of Article 91(1) of the Staff Regulations — Concept

(Staff Regulations, Art. 91(1); Conditions of Employment of Other Servants)

6.      Officials — Actions — Judgment annulling a measure — Effects

(Staff Regulations, Art. 91)

1.      While the legal characterisation of a measure is a matter for the European Union judicature alone and not for the parties, the European Union judicature can annul only acts adversely affecting a party and not, as such, the characterisation which their author mistakenly gave them. The head of claim seeking that, in the operative part of the judgment, the Civil Service Tribunal should reclassify the contract of a member of the temporary staff is therefore inadmissible.

(see paras 24, 25)

2.      As regards the determination of the time when the act adversely affecting an official occurred, that is to say the fixing of the date from which the time-limit for submitting a complaint must be calculated, it must be observed that it is as from its signature that a contract produces its effects and therefore its ability to adversely affect the member of the temporary staff concerned, so that it is in principle from that signature that the time-limit for submitting a complaint in good time in accordance with Article 90(2) of the Staff Regulations must be calculated.

(see para. 48)

See:

11 July 2002, T‑137/99 and T‑18/00 Martínez Páramo and Others v Commission, para. 56

30 April 2009, F‑65/07 Aayhan and Others v Parliament, para. 43

3.      The fact that a directive is not, as such, binding on the EU institutions does not preclude those institutions from having to take it into account indirectly in their relations with their officials and other servants. Thus, as regards Directive 1999/70 concerning fixed-term work and the framework agreement annexed thereto, it is for the institutions, in accordance with their duty to act in good faith, to interpret and apply, as much as possible, as employers, the provisions of the Conditions of employment of other servants in the light of the text and the purpose of the framework agreement.

(see para. 54)

4.      The framework agreement annexed to Directive 1999/70 on fixed-term work makes stability of employment a priority objective in employment relations within the European Union. In particular, Clause 5(1)(c) provides that a maximum number of renewals of fixed-term employment contracts or relationships must be set. Clause 5(2)(b) provides that fixed-term contracts may, where appropriate, be deemed to be contracts of indefinite duration.

Thus, under the first paragraph of Article 8 of the Conditions of employment of other servants, any subsequent renewal following a first extension for a fixed period of a fixed-term contract as a member of the temporary staff under Article 2(a) is to be for an indefinite period, and that reclassification must be regarded as operating automatically. So far as the institutions are concerned, that provision must be interpreted in a manner which ensures that it has a broad scope, and it must be applied strictly, since its purpose is precisely to restrict the use of successive fixed-term contracts as members of the temporary staff by deeming any third fixed-term contract that might be concluded to be a contract of indefinite duration.

Furthermore, the force of the internal rules of an institution is less binding than that of the Conditions of Employment of other servants and those rules cannot prevent the first paragraph of Article 8 of the Conditions of Employment from producing its effects.

(see paras 54-56, 60)

See:

Aayhan and Others v Parliament, paras 119 and 120

5.      A claim seeking payment by an institution to a staff member of a sum which he considers to be due to him under the Conditions of employment of other servants is a dispute of a financial character within the meaning of Article 91(1) of the Staff Regulations, but is to be distinguished from actions to establish liability brought by staff members seeking damages against their institution. Under Article 91(1) of the Staff Regulations, the Civil Service Tribunal has unlimited jurisdiction in those disputes, which entrusts it with the task of providing a complete solution and thus ruling on all the rights and obligations of the staff member, save for leaving to the institution in question, under the supervision of the Tribunal, the implementation of such part of the judgment under such precise conditions as the Tribunal may determine.

(see para. 68)

See:

18 December 2007, C‑135/06 P Weißenfels v Parliament, paras 65, 67 and 68

2 July 2009, F‑49/08 Giannini v Commission, paras 39 to 42

6.      The annulment of a measure by the European Union judicature has the effect of retroactively eliminating that measure from the legal order. Where the annulled measure has already been implemented, the cancellation of its effects requires that the legal situation in which the applicant found himself before the adoption of that measure be reinstated.

(see para. 69)

See:

26 October 2006, F‑1/05 Landgren v ETF, para. 92